Fair Use and Cleaned Up Batman Porn

For those who have ever had dirty thoughts about their favorite movie character, chances are there’s a porn parody to make all their naughty Hollywood dreams come true. Come on, you don't have some version of "Anna" from Frozen in your spank bank? Whatever… Princess Leia… Teletubbies? Mr. Rogers? Don't make me keep going. ADMIT IT!

Well, anyway, the porn industry leaves no market un-served when it comes to Rule 34.

We're talking about actual plot-driven pornos with feature scripts, long set hours, and highly-paid actors and actresses. These porn parodies are produced by some of the most popular porn production companies and (I think) are protected under the fair use doctrine. There are rational arguments to the contrary, but thus far, I am not aware of any major movie studio that has brought a copyright infringement claim against a porn parody.

But, bizarrely enough, someone is has reversed the polarity on the batteries in this particular gyrating bead-filled sex toy by taking porn parodies, and editing out all the sex scenes, so what you have left is a porn parody without the porn.

Yes, Really.

Which begs the question, "Is a clean version of Batman XXX: A Porn Parody fair use?"

I think not.

In Clean Flicks of Colorado v. Soderbergh, Clean Flicks took commercial films and edited out the “sex, nudity, profanity, and gory violence” in original Hollywood movies, and created new tapes of the edited versions. The newly edited versions were then sold or rented to their customers. The movie studios claimed that these "clean" versions were copyright infringement.

In response to the studios’ counterclaim, Clean Flicks asserted they were “fair use” of the studios’ copyrighted works.

Section 107 of the Copyright Act provides “fair use” of a copyrighted work, such as reproducing the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement.

In evaluating whether a particular use is fair, we look to 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, Clean Flicks argued it was merely criticizing the objectionable content commonly found in current movies by providing more socially acceptable alternatives. The Court deemed this argument was “inconsequential to copyright law” and held it was not the Court’s job to “determine the social value of copyrighted works.” The Court then considered whether Clean Flicks’ use could be considered “transformative,” meaning whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The work was not transformative because Clean Flicks added nothing new to the movies and merely deleted scenes and dialogue from them. The use was also for commercial gain, and the Court consequently concluded the first and second factors weighed in favor of the studios.

Based on the Clean Flicks case, I think that merely deleting scenes from a copyrighted film is not transformative, because there is no new expression, meaning, or message in the Batman XXX sans the XXX. I usually explain it like this — you get copyright by breathing life into something with your creative efforts. If you make new life using other people's works, then that is probably fair use. But, this doesn't seem to pass my "God blowing life into dust" test.

Looking at the quantitative and qualitative amount of the copyrighted material used, also favored the studios in the Clean Flicks case because the copies were almost identical to the originals, and used the entire original – except the naughty bits.

With regard to the most important factor in the fair use analysis, the effect on the market for the original, Clean Flicks trotted out the common infringer mantra, "but we're helping you!" Clean Flicks argued that their infringement actually benefited the studios because Clean Flicks purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions.

The Court stated, “The argument . . . ignores the intrinsic value of the right to control the content of the copyrighted work in the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public . . . is a question of what audience the copyright owner wants to reach.” Ultimately, the Court held that public distribution of edited versions of the studios’ films for the purpose of eliminating objectionable content did not constitute fair use.

In our porn parody scenario, the infringement seems even more clear. In Clean Flicks, at least they were buying a film, thus not depriving the copyright owner of a sale. However, in this situation, someone bought the video and now is distributing it for free – with the sex scenes taken out.

Who would want to watch a porn movie with no porn in it, you ask? Well, the original Batman XXX is actually a pretty great movie — playing up the 1960s campiness of the original Batman series. Sort of like how Tina Fey is actually a better Sarah Palin than the original Sarah, the Batman XXX is a refined, superior, interpretation of the original. And then there's the bang scenes.

Comments

I'm not sure I buy the argument that subtracting from a work cannot be transformative. the fact that you say Batman XXX without the XXX is a pretty good movie implies that there is a noticeable change to the movie by subtracting the XXX.

Also, if merely using pieces of an existing work or works cannot be transformative _by_definition_, then 'mixing' of works cannot be transformative by the same definition, but I believe that such things have been held to be transformative of the original works.

Along similar lines, if deleting something from a work is a copyright violation, then if I fast-forward through commercials, is that a copyright violation?

what if I skip them rather than fast forwarding through them?

now, I happen to believe that there really should be a category where the original copyright holder gets some sort of 'standard royalties', but can't prevent the use of their work. If there was such a category, I think that these 'trimmed' films would belong in that category. But since there isn't and the only options are 'only with the permission of the copyright holder' and 'fair use', fair use should win

1) purpose or character – the purpose of a porn parody parody (levels of recursion here….) is to deliver the artistic merits of the film by removing the pruriently interesting parts, for which there's no existing availability. The analog here would be to take a multi-track song and strip out the voice channel to make a karaoke version in a situation where the publisher didn't make one. This is a transformative work, since the audiences for the porn version likely have minimal overlap with the market for terrible C movies (as a rule, Batman XXX may be the exception, which I'll now have to track down). Setting aside effect on the market, the intended and likely audience are simply different, just like the audience for a metal remix of a Taylor Swift song are entirely different. I think this still cuts in favor of the original producer, though only slightly.

2) Nature of both works are commercial and non-informative, so favors the original producer.

3) Amount of the work – the amount used was exactly what was needed to make the necessary transformation, and no more. While a large percentage of the work was used, the new work is an entirely different product, and no extra part of the work was used, so this goes to the remixer (no more than necessary was used).

4) Market impact – here I think there's clearly (without seeing other facts presented) no negative impact on the market. Almost no one who would consider buying the pornographic version of the film would intentionally choose to buy the non-pornographic version, but there may be a small population who bought the edited version in the $2 bin for their children who then learned of the adult version and would then buy it for themselves. Since the intended audiences are so different though, I expect to see either no net impact, or slightly positive net impact for the original producers, so this factor goes to the remixers.

This would also necessarily mean that a re-edit of many films that change the nature of the film would also be fair use, so long as the likely audience is different, but that a re-cut of Star Wars Episodes 1-3 to get rid of Anakin and Jar Jar Binks to make the films watchable would not be fair use, since the audience (Star Wars fans) is still the same.

I'm pretty sure the DVD has a version of the film without the porn in it as a special feature.

So this might just be straight up copyright infringement.

From it's wiki page:
The DVD release came with several special features including a behind-the-scenes featurette, photo gallery, a featurette on the casting process and a sex-free version of the film. [emphasis added]

> I am not aware of any major movie studio that has brought a copyright infringement claim against a porn parody.

In 2002, George Lucas sued over a Star Wars porn parody and lost. The Judge's ruling was that it was extremely unlikely anyone could possibly consider Starballz to be in any way associated with the original, because of how well known the Star Wars movies were.

Of course that does leave room on some less-well-known things being parodied (for example, the general canon of Star Wars or Star Trek are known to most people, but considering that Eastman and Laird's originals are little known, could someoen think that they licensed me TMNT to write porn?)

Clean Flicks argued that their infringement actually benefited the studios because Clean Flicks purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions.

The Court stated, “The argument . . . ignores the intrinsic value of the right to control the content of the copyrighted work in the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public . . . is a question of what audience the copyright owner wants to reach.” Ultimately, the Court held that public distribution of edited versions of the studios’ films for the purpose of eliminating objectionable content did not constitute fair use.

Doesn't this (the selling, rather than renting) fly in the face of the first sale doctrine?

currently the courts are letting rights owners do an end run around first sale by accepting the claim that to use anything on a computer you must fist make a copy of it into memory.

so even if they purchased a copy, edited the copy, and then sold it. the fact that copies have to be made to do the editing and write the edited version (and to play the edited version) is currently justification enough for the rights holder to exercise a veto on anything and everything that is ever done.

The Courts are only now starting to wake up to the fact that loading software on a computer does not make the computer a 'new special purpose machine' worthy of being protected by a patent.

There was a sketch comedy show back in the '70s called Keep On Trucking. I think I watched it twice– I was pretty young and I don't remember much.

One of their recurring bits was to show an X-rated film edited down for television, which would simply be a couple of minutes of random clips. I don't know if these were actual clips from the movies in question or not. It was the '70s, so I don't even know if they were porno or not. There were some 'regular' films back then with an X-rating (such as Midnight Cowboy).

That show was also where I first saw the puppet Madam. I seem to remember another similar puppet on the show– a Black lady. But I never saw her again on any of the later shows that Wayland Flowers did with Madam.

@GreenW
We probably will never know whether GMG would survive such a court case, because not only does Jim Davis say he approves of it, but his company has actually made its own Garfield Minus Garfield strips. http://www.gocomics.com/garfieldminusgarfield

Apparently not, given that courts have held that there is a legal difference between ripping a CD to your hard drive and downloading or otherwise making use of unauthorized copies of the music on that CD even if you own it—that’s why Michael Robertson’s MP3.com music streaming service (which permitted people to verify they owned a CD by putting that CD in their own CD-ROM drive, then stream the music they owned from copies of the CD on Robertson’s MP3.com server) got shut down.

And yet, music locker services such as those run by Amazon and Google, where you can upload songs you've ripped yourself and then stream them at will later, are apparently now perfectly legal.

The bowdlerized version could be seen as a (maybe positive) commentary on the non-prurient aspects of the movie. That would lend credence to the notion that the clean version was made for expressly (pardon the pun) critical purposes and therefore should survive a copyright claim under a fair use defense.

It seems like I read somewhere that the official Batman XXX DVD included a menu option to watch just the plot and none of the porn scenes. If this is true, it seems like it would give a stronger copyright claim to the rightsholders, since they *already* sanctioned a version of the movie with the porn excluded.

That doesn't seem to be what anybody was actually debating in this copyright case, though.

In the case of these cleaned up parodies, I agree with you completely. The Clean Flicks case is almost directly on point and found against fair use. Moreover, as you say, they aren't doing anything which changes the plot or the point of view.

I am not inclined to agree that subtracting cannot create something new and transformative though. Pixar's "Inside Out" is a rather funny kid's movie that shows a girls actions alongside what is going on in her head with something of a coming of age theme taken as a whole. A new cut was made that removes all of the scenes inside her head and the final denouement. That new cut is a rather depressing short about a girl that falls into depression after her life is upended. Although using only material from the original and in the same order, it has a different tone, a different theme, and a somewhat different plot.

@Robert Beckman I am inclined to agree with Marc's analysis of the four factors rather than yours. But, reasonable people will frequently disagree with them. Nimmer has a paper, "Fairest of them all" and other fairy tales of fair use whose main point is that it is easy to make the fair use factors fit either side in the vast majority of cases.

There is a notable difference between deleting entire scenes from a movie, and editing/altering a movie by removing a character. The two cannot be taken together as a single argument that "Subtraction is / is not transformative."

I think there's a bit of revenue deprivation in the long run too, when it comes to "hollywood" releases, at least.

If I've been submitting to objectionable things in movies and attending the theater anyway, but then I come to find out about Clean Flix, I might change my habits. I'll stop attending the theater and wait for a little while after the home release when I know an unobjectionable version will become available.

In this sense, Hollywood loses the more profitable theater ticket sale because a new unauthorized market is attracting the potential audience.

I was thinking the same thing. Garfield minus Garfield is not created merely by subtracting Garfield. There is additional (albeit minor and rote) constructive effort required to replace the backgrounds.

Wait, wait, wait! Did Clean Flicks actually buy a copy of the original work for every edited copy that they sold? Then did they try to make a first sale doctrine claim? I think that such an argument should be able to hold up. Copyright in the US is not supposed to be a moral right is it?

Maybe I'm thinking of the wrong company … but there is/was a company where you bought a movie DVD/VHS, sent it to them, and they sent you back (in return) a "cleaned" copy. I'm not sure if that's what **this** company is doing. But it had many of the "copyright vs 1st sale" issues. I'm pretty sure the "cleaning" company lost its battle, but this might have been an appeal in the same case. I just don't remember the details anymore.

That seems ridiculous. If I censored the dirty pages out of a book, then sold said book, it wouldn't be a copyright violation, it would be first sale. Just because it is easier with existing technology to create an infringing copy of a video than to create a legitimately edited copy that should not make something that is legal in one form of media illegal in another. If I go to certain pains to accomplish the same act, with different means but the same end result (say I buy a legitimate copy for each edited copy I sell, and destroy the legitimate copy or otherwise render it unreadable), I should believe that should be legal.

"Do you see what happens, Larry? This is what happens, Larry! This is what happens when you find a stranger in the Alps!"

Network tv has been broadcasting abridged and overdubbed versions of movies for a long time. I bet CleanFlix could have gone that route without issue, assuming they were able to successfully deal with the studios, and pay for a distribution license.

Suppose instead of distributing the movie, they distributed a "Clean Parts Play" file with something like
0:00:00 – 0:12:34
0:12:42 – 0:15:22
etc.
That is, the time segments that don't contain the stuff they object to. A computer player could easily take that file and play the corresponding segments of the DVD. Is that a copyright violation? Note that no derivative work is made; they are distributing the instructions to play what would be a derivative work if it existed. (If you claim it exists because it is played, how is that different from playing a DVD, fast-forwarding over the boring parts, and jumping back to replay the good parts? That's equally a derivative work, as played.)

If the distributed file is infringing, what about a review that says "Objectionable language appears from 12:34 – 12:42, and from 15:22 – . . ."? The same data is there.

@joshuaism
Apple put a company out of business who made Mac clones. The company purchased a copy of OS/X for every computer they sold, but Apple successfully sued them out of business for 'pirating' OS/X

They case hinged on the fact that instead of opening every box and installing OS/X from the media in that box, the company installed from an image server, and that image server was deemed by the courts to be a case of illegal copying

so it doesn't matter if they purchased X copies and sold X copies, since you can't cut/splice a DVD like you could film, distributing a modified version requires making a copy.

This is completely ignoring the court cases that have been won based on the fact that using software means copying it from the hard drive to ram, and from ram to the cpu, etc.

@seth, the problem is that video players wouldn't understand such a pleyfile, and even if they did, there would be a hiccup in the playback as the player skipped the gap (unless playing from a hard drive, but that's another copy)

Apple prevailed in the suit because hackintosh installation program circumvented the OSX code that prevents installation on third-party hardware. This DMCA violation made Psystar's licenses invalid and made them copyright violators.

The whole premise of Batman falls apart without the porn aspects. Why do you think Robin always stands so close to Batman, or that the Joker's lipstick is always smeared, or that Batman lives in a cave? There might as well be a train running through the bat cave to complete the metaphor. The Riddler has a big question mark on his shirt because everyone is wondering if he is fucking Batman. So the original Batman comics were the comic book equivalent of gay porn before anyone even grabbed a camera.

It would be very easy to write a video player (starting with an open-source one) to deal with such a playfile, and to play the DVD without hiccups at the cuts. In fact, I wouldn't be surprised if they already existed.

In 2002, George Lucas sued over a Star Wars porn parody and lost. The Judge's ruling was that it was extremely unlikely anyone could possibly consider Starballz to be in any way associated with the original, because of how well known the Star Wars movies were.

That sounds like trademark law, not copyright.

Chris Meadows says

Fair use really does tend to have kind of an interesting double standard.

@Seth – a review/listing of timecodes would in no way violate copyright. Probably in the same way that RiffTrax works – you buy (or otherwise provide) a legal (well, should be anyway) copy of the appropriate movie, then buy a separate audio track (which is played separately too) from the RiffTrax guys, play the two together (I think they even tell you how to sync them up), and bam! Similarly, just saying "skip from here to here, and there to there, and then here and here to avoid smut" would totally be legal. So long as you're not violating the public showing clause, you can watch your own movie any way you want to, just like anybody else can start, stop, skip ahead, and rewind as desired in the privacy of their own home…

I legitimately do not understand the court's view on fair use. This was not transformative, but Turnitin's wholesale taking of copyrighted works without permission is? (I know the case itself was decided on the clickwrap, but they felt the need to outline how fair-usey turnitins model is).

Congress explicitly made it legal via the "Family Entertainment and Copyright Act" passed in 2005. The act says that it is legal to do the modifications via the player as long as "no fixed copy of the altered version of the motion picture is created by such computer program or other technology".

The "literal" music videos always struck me as something that *should* be covered under parody fair use but as far as I'm aware this keeps getting DMCA'd (I think) on something like a basis that they DMCA purely on the video copyright rather than on the video+audio which is being parodied.

If the court had found differently in the Clean Flicks case, would that have set a precedent allowing broadcast TV networks to show "Edited for TV" versions of major films without paying royalties? (The transformation of the work would be their removal of excessive duration.)

This is completely ignoring the court cases that have been won based on the fact that using software means copying it from the hard drive to ram, and from ram to the cpu, etc.

That's from pre-DMCA cases, or should be. The DMCA explicitly granted permission for software users to make the necessary copies into ram, etc that were required to use the software. i.e, it knocked the legs out from under software licenses being required just to use software and made a first-sale doctrine possible for software.

I would also note that it is not at all illegal to download copyrighted material. What's infringing is to upload it–that's "copying and distribution" without permission. However, since peer-to-peer networking operates by simultaneously uploading and downloading, "illegal downloaders" were (or are) actually being nailed for illegal uploading.

In the old days when bootlegged software was downloaded directly from pirate BBS's, nobody went after the downloaders. They went after the BBS.

please look again, in software the "first sale" doctrine is just about dead. look at the autodesk lawsuit, they initially lost due to first sale, but on appeal they won. There have been other cases since (and since the DMCA went into effect)

Man, I love how going to Popehat for the past month has shown a single frame of clearly suggestive batman porn on my screen. It gives the disappointment at no update focus, direction. Directed at that stupid frame of porn.